Changes to the Kansas Open Records Act intended to close a loophole preventing the use of private emails to circumvent records retention appears to have missed a more serious exemption.
In 2016 then-governor Sam Brownback signed Senate Bill 22, which made private emails by public officials which dealt with official business subject to KORA.
Previously, private emails were not subject to KORA under any circumstances.
However, in 2016, the statute was changed to read “Any recorded information, regardless of … location, which is made, maintained or kept by or is in the possession of (A) Any public agency; or (B) any officer or employee of a public agency pursuant to the officer’s or employee’s official duties and which is related to the functions, activities, programs or operations of any public agency. (K.S.A. 45-217(j)(1).)”
While legislators may suggest that they closed the private email loophole, and indeed when the law was signed, former Democratic State Senator Anthony Hensley claimed it was so.
“Elected and appointed officials should not be using their private email accounts to conduct public business,” said Hensley, (D-Topeka), who had backed a similar proposal in 2015, according to the Kansas City Star.
That statement, however, is inaccurate, to say the least. An exception in paragraphs 3 and sub-paragraph B of the statute remained unchanged from the previous version: “(3) Notwithstanding the provisions of subsection (j)(1), ‘public record’ does not include: … (B) records that are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state.” (emphasis added).
So while employees of a city or county — as an example — or even state employees, whether on personal or official accounts, would be subject to KORA, the personal emails of elected officials used to discuss government business are still exempt from KORA.
“It doesn’t make sense why the legislature would allow for public access to the vast majority of public records that could be related to public business conducted on private email accounts but allow local governing body members to avoid the same scrutiny,” Max Kautsch, an attorney who specializes in First Amendment cases, said.
City of Prairie Village uses the exemption to hide records
A prime example of this particular Kansas Open Records exemption being used is in the City of Prairie Village — although it is hardly the only governing body in the state to use the statute to avoid the very transparency KORA seeks to foster.
Several citizens, concerned about zoning proposals, sought emails from the mayor and city council under KORA — and discovered only the mayor has an actual official email address.
In an email provided to the Sentinel from City Administrator Wes Jordan to one of those residents, Jordan notes that members of the governing body only appear to have official emails.
“For instance, let’s say Dan Runion emails Ian Graves (Graves is a city council member – ed.) Ian Graves does not have an actual email address with the City,” It would appear he does (however, [email protected] is not an actual email account, it is simply a software mechanism that forwards messages to his personal account, which is not subject to open record.”
The “software mechanism” is called an “alias” and is commonly used for people who may need a variety of email addresses for their daily business, but prevents a proliferation of accounts that must be managed.
“If the city were interested in promoting transparency and allowing the public to challenge or verify the decisions it makes,” Kautsch said in a phone interview. “It would make these emails open.”
In this case, however, it appears to be used to exploit a loophole in KORA to prevent the sort of transparency and accountability the law is supposed to foster.
Something Kautsch noted in testimony on an attempt in 2015 at a revision of the law, writing ” … because Senate Bill 361 does not amend the current-law exception … related to “an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state,” that specific exception would continue to operate as in the past (emphasis added).“
That same exemption made its way into the 2016 successful revision.
Kansas Open Records exemption undermines transparency
Indeed, the ability to hide communications behind the private email exemption for members of the governing body opens multiple cans of worms and also undermines the Kansas Open Meetings Act prohibitions against secret meetings — among other things.
In short, under KOMA, members of a governing body are prohibited from communicating privately about official business so that issues may not be concluded out of public scrutiny but must be discussed in an open meeting.
With the private email exemption, city council members, county commissioners, school board members, and legislators can easily violate KOMA with little fear of being caught.
Dane Hicks, the Publisher of the Anderson County Review and a former member of the Kansas Press Association Board of Directors, who is a 37-year veteran of the Kansas newspaper industry, said in a recent phone interview he was unaware of the exemption but was incensed when it was pointed out.
“When you run into bad lawmaking like this that runs contradictory to its original target, you always wonder – was it intentional or was it accidental?” Hicks said. “The broad objective of KORA and KOMA is pretty singular – to make public business accessible to the public. “